1621682 (Refugee)

[2021] AATA 310

1621682 (Refugee) [2021] AATA 310 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621682

COUNTRY OF REFERENCE:                   Liberia

MEMBER:Jane Marquard

DATE:13 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 January 2021 at 8:43am

CATCHWORDS
REFUGEE – Protection Visa – Liberia – fears forced initiation as Poro society leader – threats of death at refusal – Christian beliefs – credibility issues – applications for permanent residency shortly after arrival – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND TO CLAIM FOR PROTECTION

1. The applicant is [an age]-year-old man from Liberia.

2. He first arrived in Australia [in] November 2012 on a Temporary Business Entry Visa (Subclass UC 456). He was then granted a tourist visa on 13 December 2012 and applied for a partner visa on 6 March 2013. His application for a partner visa was refused by the Department and on 4 August 2015 the refusal was affirmed by the Migration Review Tribunal.

3. The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 21 August 2015. A delegate of the Department for Immigration and Border Protection (the Department) refused to grant the visa on 21 November 2016.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. The applicant claims to fear harm because he has been selected to be a Zoe, a traditional practitioner of the secret Poro Society[1], and that because he refuses to take up the position, he will be killed. The Tribunal must determine whether the applicant meets the refugee criteria or the complementary protection criteria set out in the legislation. While the Tribunal has significant sympathy for the applicant’s position, as he has lived in Australia since 2012 and clearly has a loving wife, child and stepchildren in Australia, the Tribunal is not satisfied that he meets the criteria for this visa.

   [1] United Nations, United Nations Mission in Liberia, An assessment of human rights issues emanating from traditional practices in Liberia, December 2015

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act.

9. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in the attachment to this decision.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration

12. In coming to a decision, the Tribunal has taken into consideration the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Liberia.

    Summary of evidence before the Department

13. The applicant made claims in his application forms, supporting documents and at an interview with the Department on 27 July 2016. A summary of his evidence follows.

14. The applicant stated that he was born on [date] in [Town 1], Liberia. He is from the Kpelle ethnic group and is a Christian. He said that he is from ‘[Town 1]’.

15. He said that his father was a businessman and leader of the Poro Society. His family was financially secure and happy. He was one of [number] children.  His father is deceased, but his mother and sister are residing in Liberia, as are [children], born [in years]. He also had a stepson who passed away.

16. He is married in Australia and has a daughter born in [year], and [step-children].

17. He completed high school in October [year]. He studied [course] at [University 1] from [year] to [year]. While studying, he participated in the 2005 and 2011 elections for the opposition party. He was involved in campaigns and rallies. He was harassed by the government, but it was ‘not life threatening’.

18. Before coming to Australia, he worked as [an Occupation 1] at [a workplace] with representative, [Mr A].

19. He travelled to Australia as part of his official duties upon an invitation from the Liberian community in [State 1]. While in Australia he met his wife[and] got married and later lodged a partner visa application. He and his wife have a daughter, and he has three stepchildren.

20. [In] July 2015 he was informed by his sister that his father had passed away from illness.  On 4 August 2015 he sent money to his sister for the funeral. He said that as he also had his visa application refused around this time, he planned to return to Liberia on 28 August 2015 for the funeral.

21. However, on 20 August 2015 he received an email from his friend, [Mr B] who attended a meeting with the applicant’s family members and the Poro Society. He was informed that, according to the doctrine, if a leader dies, the first son of the leader should ascend to the position as head of the Society. The applicant was informed that there were plans for him to be initiated to the Poro Society position [in] August 2015. He was told that he would be initiated two weeks after arrival and if he refused, he would be killed through ritual practice. His sister said that there was nothing they could do as his father had agreed to it before he died. His father was a pagan and had also been forced to be chief when he was aged [age]. The applicant’s uncle is a Poro member. However, the applicant’s mother and siblings are Christian even though his father was a Poro, and prior to that, a pagan. The applicant’s father had respected his wife’s wishes not to involve them with Poro.

22. The applicant claims that he is not willing to accept his father’s position as he is Christian, and the Holy Bible forbids ritualistic practice.

23. He said that the majority of those in authority and law enforcement are members of the Poro Society.

24. He fears that he will be killed if he returns to Liberia. He said that he cannot relocate because of his affiliation with a major opposition party, the Congress for Democratic Change, as well as his former membership of [a sporting] club. Because he was famous through his membership of the [sporting] club, he could be easily found by the Poro.

25. At the interview with the Department he said that he was not sure if there was a new chief, or whether the Poro still want him to be chief. He said that he could not reside in a member country of the Economic Community of West African States (ECOWAS) as the Poro network is extensive. He said that since he left the country his family has not been harassed by the Poro as they are only interested in him.

    Documents provided to the Department

26. The applicant submitted the following documents in support of his protection visa application:

    ·     An email sent by [Mr B], dated 20 August 2015. The email included the following:

    I visited the village yesterday to pay my respect to the home – going (death) of your father.. who ruled the people of [Village 1] for decades.. and as per tradition the Oldman would be buried [in] August 2015. His burial rite would include some rituals including you ascending to his post in the poro society as his first child immediately after the burial, the burial of five life cows and and elaborate festival. I was also informed by some of the elders that you are due to come to the country  on the 28^th of August 2015. But I am advising that you shouldn’t come for the funeral as the elders have resolved to initiate you into the poro society immediately after the burial… please be informed that poro is a very demonic society. Most of the people who go for initiations hardly return alive due to the gravity of torture they are subjected to during the initiation process… the elders have resolved to initiate you two weeks after his burial..a refusal to be initiated would lead to your death…. The elders have resolved to kill you through ritual or occultism if you refused to join the poro. Let me make you understand that the poro society is a very dangerous and harmful cult. Some of its members engage in human sacrifices for power.  a young man who was initiated into the poro for a similar cause in the neighbouring town never returned as he was murdered in the bush. After months of crying by his mother his initiatiors finally returned one day to broke news that the poor lad was swallowed by the devil.

    ·     Copy of a document from the ‘Republic of Liberia National Council of Chiefs and Elders of Liberia’ (undated) stating that ‘[Mr C], a traditional zoe within the [community] of [Village 1]’ died [in] July 2015.

    ·     Copy of a death certificate issued by the Republic of Liberia Bureau of Vital Health Statistics, Ministry of Health and Social Welfare. The certificate indicates that [Mr C] died [in] July 2015, aged [age] years, and his death was caused by ‘[medical condition]’.

    ·     Copy of a letter dated [June] 2014 from the National Secretary-General of the Congress for Democratic Change, Congo Town, Liberia addressed to the chairman of the Congress for Democratic Change (CDC) Australia. The letter states that the Liberian CDC had endorsed the Transitory National Body of the CDC Support Group in Australia and recognised various officials including the applicant as the interim treasurer of the CDC.

    ·     Copy of a document from the Republic of Liberia Ministry of Internal Affairs, [Town 1], [District 1], issued [in] October [year]. The document states that [Mr C] is qualified as ‘Traditional Zoe’ throughout [District 1], Republic of Liberia.

    ·     Copy of the applicant’s Liberian Driver’s License.

    ·     A newspaper article titled ‘Inhumane traditional practices must end. Time for Liberia to step up’, dated 22 December 2015 and published by Front Page Africa.

    Evidence to the Tribunal

27. The applicant provided evidence to the Tribunal in a Statutory Declaration dated 17 December 2016, in pre-hearing submissions, in a hearing on 2 September 2020 and in post-hearing submissions dated 6 September 2020. At the hearing on 2 September 2020 the Tribunal outlined the procedures and law to the applicant. As the hearing was conducted via Microsoft Teams video, the applicant confirmed that he could see and hear clearly.

28. A summary of his evidence is as follows.

    Statutory Declaration dated 17 December 2016

29. The applicant stated that he had been involved in the ‘opposition party’ in Liberia since 2005. He confirmed that he was not physically harmed while he was living in Liberia but was harassed and intimidated by the government at the time.

30. He confirmed that he travelled to Australia as part of his official duties with a representative of the Liberia House of Representatives, [Mr A], arriving [in] November 2012. He met his wife [in] Australia and they now have a [child].

31. His father died [in] July 2015. His application for a partner visa was refused by the Department and the decision was affirmed by the Migration Review Tribunal (MRT) on 4 August 2015. He said that he informed his sister that he would return to Liberia on 28 August 2015 to join his family at the funeral [in] August 2015. On 20 August 2015 he received the email from [Mr B], referred to in his earlier evidence.

32. He said that he had been informed that the position of chief is still vacant in his village and is being ‘taken care of by a caretaker’. He also claimed that children are normally persuaded or coerced into the Poro society, however adults who are specifically chosen are forced to join. He said that non-compliance can result in the destruction of a person through the use of rituals.

    Tribunal hearing on 2 September 2020 and pre-hearing written submissions

    BACKGROUND

33. The applicant confirmed that he was born in [Town 1] in [year], is from the Kpelle ethnic group and is a Christian. He said that [Town 1] is about [distance] drive from Monrovia in the central area. His grandparents all came from this region.  

34. His father had a [business] in the region. His mother did not work. All his siblings are in Monrovia except for one, [Mr D], who is in his hometown. [Mr D] is [working] and he is married with children. The other two brothers have graduated from high school. One works [and] the other is trying to find a job. They are both in de facto relationships. He has [sisters], all living in Monrovia. They are all [studying]. [A number] of his sisters are in de facto relationships and one is married. They all have children. Besides his mother and sisters, his grandparents, uncles, aunts and other relatives are still living in Liberia.

35. He has [children] in Monrovia[who] are living with their mothers. He keeps in contact with them.

36. He said that his family lived in [Town 1] until 1990 when the war impacted the region, and they moved to Monrovia where he finished high school. His father could no longer run his business. In 1990, (when he was aged [age]), there was a massacre by the rebels in the Lutheran Church in Monrovia so people fled in all directions. His family dispersed and his parents returned to [Town 1]. The applicant went to [Town 2], [District 2] and this was the last time he lived with his parents.

37. He attended [a] church with his mother and siblings. He is not sure what religion his grandparents were, but his father was a pagan. The applicant was baptised. There were not many Christians in his village but there were many in the capital.

38. He completed high school in October [year], worked part-time and then went to university a few years later, obtaining a degree in [course]. He found a job as [an Occupation 1] a year later, through his local parliamentary representative, [Mr A]. He was responsible for ‘supervising things’ for [Mr A]. He would be invited to go and speak on his behalf about issues. If someone wanted something done[then] he would go to supervise for [Mr A] and talk to people while [Mr A] was not there. [Mr A] was a representative of the Congress for Democratic Change. He represented Constituency [deleted], and the community ‘in terms of rules’. He also ‘made laws’. While working for [Mr A], the applicant lived in Monrovia but went home to his village a few times a year.

    AUSTRALIA

39. He said that he came to Australia to ‘honour the Liberian community’ and to celebrate 26 July, the day of independence. The invitation was from the Liberian Community of [State 1]. The Australian Liberian community wanted members of the Liberian community to tell them what was happening in Liberia. The three representatives organised the trip. He said that 13 members of the community travelled to Australia. They were all [the same occupation], with jobs like his, for three different political representatives. Only one representative travelled to Australia and that was [Mr A].

40. The delegation arrived in Australia [in] November 2012 and they went to the 26 July celebrations, and went sightseeing. They told the community about what was happening in Liberia. Many of the people they spoke to were not aware of what was happening in Liberia.  Asked if there were other official activities, he said that there was a ceremony. They stayed in a private home of one of the members of the association.

41. The Tribunal asked how they could attend the 26 July activities if they arrived in November. He said that was when the activities were held.

42. He was asked if when he came to Australia it was his intention to have a short visit only. He said that it was. He then applied for a tourist visa as he wanted to have a short stay, have a holiday and see Australia.

43. He said that he met his wife a month after arrival at a reception in 2012, and they married a year later in March 2013. He applied for a partner visa in March 2013. His partner visa was refused on 21 April 2014 and this was affirmed by the MRT on September 2014 and again [in] August 2015 following judicial review. He said that he wanted to stay in Australia with his wife.

44. The applicant said that he is living with his wife, three step-children and their own child. He is currently studying for a [degree] at [a university in State 1].

45. In submissions to the Tribunal the representative said:

    The applicant refutes the Delegate’s claim that their marriage is not genuine. The applicant accepts that they (couple) made some mistakes during the Partner visa application because he was new to Australian, and the marriage rules were different from his county’s. He also says that he was not well informed by his representative. The couple was emotional when I was discussing this matter with them. They want to make a new application when the Department declined the previous one. However, the applicant has been the only breadwinner until now, and they did not have the application fee of AU$ 7,715 to apply for a new Partner visa.

46. Copies of the birth certificate of their child, bank statements and their marriage certificate were provided.

47. The applicant said that he does not know if the people with whom he travelled to Australia have returned to Liberia, as he did not keep in touch with them.

    PORO SOCIETY

48. The applicant said that he first heard about the Poro Society when he was aged [age], and he was still living with his family. He said that he did not really know about the Poro but his father was taken for initiation. It was [number] years after the war. Asked what happened when people took his father, he said that he just heard from someone that his father had been taken. He was asked how long his father went for and he said it was a long time. Asked if he could remember how long, he said he was taken for a year. He was asked who told him his father had been taken. He said that his uncle told him that he had gone to the bush but did not tell him anything further.

1. He said that they did not talk in the family or with friends about Poro.

2. He said that he knew that his grandfather was a Zoe but did not know what it was. Asked how he knew, he said that his uncle told him. When his father got taken for a year, he was asked if someone told him what a Zoe was. He said that his mother told him. She said that her father had gone to the bush to replace his grandfather. She explained that her grandfather was a Zoe and that her father was a Zoe. He said that he understood that being a Zoe passed down the family.

3. When his father returned from the bush he did not talk about it. His father never talked to him. Asked what his father’s role as a Zoe was, he said that he does not know. He said that his mother talked about it a little, telling him it was ‘something to be passed on’. He did not ask his father about it as he was not interested. He never saw his father perform any Zoe responsibilities as he never saw much of him.

4. He said that he was told by his uncle that his father was initiated but not what happened. He was asked if he had been interested in finding out about initiation and he said he was not. His mother did not want him to be a Poro member because she was Christian.

5. He never talked to his brothers or sisters about the Poro. None of them were interested as to where his father had been for a year. His mother was initiated when she was young and did not want them to be involved. He was not sure what his father’s job was as a Zoe. Asked if his father had any scars, he said that his father had a scar on his back. Asked if, while at university, he read about the Poro society, he said that he did not.

6. He said that he and his siblings were not initiated. There was never any attempt to initiate them. He said that the war broke out, and he had limited idea about what went on. The Tribunal asked him if it would not have been expected that he and his siblings would have been initiated as his grandfather and father were Zoes. He said in submissions that the Poro were powerful and could have forced them if they wanted them to be initiated. He said that his mother did not want them to be initiated and he was not around them a lot. He said that he did not know if there were attempts to forcibly initiate his siblings. He later said that since he has left the country, his brother or sisters have not been initiated or been forced to be Zoe, however he is the first-born son.

7. The Tribunal asked him about reference in submissions to his father attending Poro burial rituals. He said that he can vaguely remember something his uncle said.

8. The Tribunal questioned him about a document provided by him – a copy of a document from the Republic of Liberia Ministry of Internal Affairs, [Town 1], [District 1], issued [in] October [year]. The document states that (name of his father) is qualified as ‘Traditional Zoe’ throughout [District 1], Republic of Liberia. He was asked how he got it and why such a document would be available if Poro business was secret. He said that he asked the Ministry for Internal Affairs for the document. He was asked why this information would be found on a government document. He said that it is a register. He said that he had been asked to provide proof to show that his father was a Zoe for this application.

9. The Tribunal questioned him as to why the Poro Society would not appoint someone else as Zoe as he had been out of Liberia for eight years. He said that the rule is that the position is passed on to the first son of the previous Zoe.  He said only if he passed away would the elders appoint someone else. The Tribunal questioned the applicant about statements made in his interview with the Department in which he said that he was not sure if there was a new chief, or whether the Poro still want him to be chief. In information provided to the Tribunal in 2016 he had said that there is a caretaker in his role. He said that he does not know what the situation is.

10. He said that he was informed of his father’s death by his sister [in] July 2015. He sent money for the funeral on 4 August 2015 and was informed of the refusal of his visa application on 5 August 2015. He told his sister he would return for the funeral on 28 August 2015, but his friend [Mr B] went to pay his respects to his family on 19 August 2015 and met some members of Poro Society. On 20 August 2015 he received an email from his friend, [Mr B] who attended a meeting with the applicant’s family members and the Poro Society on 19 August 2015. [Mr B] was informed that, according to the doctrine, if a leader dies, the first son of the leader should ascend to the position as head of the Society. The applicant was informed that there were plans for him to be initiated to the Poro Society position [in] August 2015. He was told that he would be initiated two weeks after arrival and if he refused he would be killed through ritual practice. His sister said that there was nothing they could do as his father agreed to it before he died. His father had also been forced to be chief when he was aged [age] as his father was pagan. The applicant’s uncle is a Poro member. However the applicant’s mother and siblings are all Christian even though his father was a Poro, and prior to that a pagan. The applicant’s father had respected his wife’s wishes not to involve them with Poro. The applicant had not bought his air tickets yet because they were expensive, when he heard this information from [Mr B]. He said that he had not retained the email chain of his emails with ]Mr B].

11. The Tribunal asked the applicant why [Mr B] told him in the email that his father ruled the people of [Village 1] for decades. He was asked if this is information which would already have been known to him. He said that [Mr B] and he lived together, and he wanted to pass on new ideas he heard at the meeting.

12. He was asked how the elders knew that he was going to Liberia on 28 August 2015. He said that his mother would have told them he was going. He said that he does not know why his mother did not warn him. He was asked if Poro was secret how [Mr B] could have heard the discussion. He said that [Mr B] was not seen when he was there.

13. In written submissions to the Tribunal the applicant’s representative said that:

    The applicant’s friend ([Mr B]) went to visit the family to pay his respect when Poro elders came to the house. From where he was sitting the elders did not see him, but he heard what they were discussing. The applicant is not surprised by the descriptions his friend gave regarding the activities of the group. The applicant and his friend met the first time in [Town 2] in 1990, and they lived together until he came to Australia in 2012. At no time did they discuss Poro matter until his father’s death. It is forbidden for non-initiates to discuss Poro matters, and the penalty for noncompliance ranges from forced initiation to death. .. [Mr B] did not know the applicant’s knowledge in the society that is why he gave a detailed description of the group's activities in the email. The applicant acknowledges he had a little idea about the group and did not know that they were making human sacrifices. According to the applicant, [Mr B]’s email was very informative.

14. The applicant claimed that he is not willing to accept his father’s position as Zoe as he is Christian, and the Holy Bible forbids ritualistic practice. The Tribunal discussed information from country sources about Liberia which suggests that about 20% of Poros are Christians and the religions often interact. He was asked why he could not tell the Poro society that he did not want to be Zoe. He said he could not as the role is passed on from father to son and there is forced initiation.

15. The applicant referred to a research document which states that, ‘when the Zoe died, his successor was chosen from his immediate family’. An American Anthropologist further states that ‘the dead Zo is washed, and the son washes in the same water; the son is then in possession of the powers of the dead Zo’. The applicant submitted that he was nominated by his father to be the heir and was therefore a person of interest to the society.

16. The applicant’s representative claimed in submissions to the Tribunal that:

    Young boys are initiated into the society. The initiation takes place in a series of rituals lasting from November to May. Sometimes the initiation ceremony takes close to three years teaching initiates their role in society. Chiefs are part of these societies but not necessarily in control of them. However, it would be difficult for a chief to act in opposition to the secret society. The Poro numbers many of the nation's highest-ranking officials among its members. Most of the ruling male elites hold Poro membership because of its symbolic power, and they use their position to evade the law and go unpunished for human rights violations in the name of defending culture The price for putting children in bush schools can be high for the poorer members of the community, so a controversial practice has arisen - forced initiation or forced enrollment. Forced enrollment occurs on a particular day of the enrollment season after the formal enrollment and dues had been paid by other students (usually some chickens, rice, palm wine, kola nuts, or some other form of currency). On this one particular day, the masked schoolmasters would roam through the village and kidnap any child they found out of his or her hut. This kidnapping is a way for those in the community without sufficient funds to get their children into bush schools so the children could be respectable citizens of society. Parents understand that if they could not pay the enrollment dues, they could leave their child outside of the hut on that day, and they would be grabbed and taken to the secret location for initiation. Even today there are certain places where one is advised to not travel at certain times because the society will attempt to kidnap travellers and perform their initiation rituals upon them even if they have no intention of joining. What exactly is taught in the secret society bush schools? Well, the Poro is called a secret society for a reason! One of the things that is apparently taught is how to keep secrets. Secret keeping is highly valued in Liberian culture. Many Liberians know what goes on behind closed doors, but not many are vocal about these things and consider that secret-keeping to be a virtue. Non-Poro Society members who transgress receive punishments ranging from forced initiations or violent physical abuse to death. Others who refuse to inherit senior members after their death, suffer ritualistic killings. (The applicant) is a Christian who despises the activities of the Poro Society. He is reluctant to return to Liberia to inherit his father in the Poro Society as a Zoe. He fears that he would be destroyed either physically or spiritually if he returns and refuses to take up the position as a Zoe. The applicant’s father was initiated into the Poro society in [year] when the applicant was about [age] years. He vaguely remembers when his father was taken away for the Poro burial rituals of his grandfather. He did not learn anything about the society up to the time the war in Liberia started in 1990. The applicant had [brothers] and [sisters] and never imagined his father would choose him to be his heir and represent him in the Poro society. The entire family left [Village 1] for Monrovia to escape the war. In 1990, there was a massacre in the Lutheran Church in Monrovia by the rebels, so people fled in all directions and the applicant’s parents returned to [Village 1], and he went to [Town 2], [District 2] and this was the last time he lived with his parents. This explains why he has little knowledge of the group despite his father’s senior role. The applicant’s mother was initiated into the group when she was a young girl, and she vowed never to allow any of her children to join the group because of what she experienced. She has also converted to Christianity.

17. He was asked if he could return to another part of Liberia and avoid the harm he believes that he would suffer from the elders. He said that the Poro are a network and they have mystical powers and he would be forcibly initiated through the network.

18. The applicant said that he could not reside in a country of the Economic Community of West African States (ECOWAS) as the Poro network is extensive. He said that the Poro has a network that is spiritual, and the mystical powers would follow him. There is no power to punish them.

19. He said that since he left the country his family have not been harassed by the Poro as they are only interested in the elders.

20. The applicant submitted that he does not want to be part of a ritualistic, evil Zoe system which ‘goes against his values’. He said that the system is ‘not acceptable and cruel’. He cannot go anywhere in the country as there is a wide Poro network. Because the Poro is a cultural organisation, there is nothing he can do and there is no protection from harm. He said that his daughter and family are in Australia and it would be devastating and very harmful for him to leave his daughter and his stepchildren. They have moved on with their lives together. He said that his life is in danger if he returns and there is no guarantee that he will be safe.

21. In his written submissions to the Tribunal the applicant provided references to articles which refer to harmful traditional practices:

    ·     In 2009 the United Nations Mission in Liberia reported that harmful traditional practices including ritual killings, continued in Liberia almost with impunity. It reported that some law enforcement agencies were reluctant to intervene for various reasons including financial or political gain.[2]

    [2] United Nations Mission in Liberia, Report on the Human Rights situation in Liberia, November 2007 to June 2008, 2009

    ·     A March 2009 news article reported on a November 2008 Supreme Court case concerning the 2005 killing of a man for refusing to join the Poro. The news article stated that the case served as a warning against impunity to members of secret societies.[3] In May 2015 there was a news report of a man kidnapped and forcibly initiated in Bomi Country.[4]

    [3] Murray, R, Liberia: groups work to break hold ‘devil’ has on towns, Inter Press Service, 11 March 2009

    [4] Liberia: Bomi Muslims Write UNMIL, Legislative Caucus, The New Dawn, 5 May 2015

    ·     Also in 2015 there were reports of two men in Bola, Bomi county being forcibly initiated into the Poro society. The Chief Zoe, who was responsible, was arrested for violating General Circulars No 12 and 13, banning forced initiation and Poro activities. The Ministry said it would take action against the Zoe.[5]

    [5] Abban, J, Liberia: Chief Zoe arrested, The New Dawn, 16 April 2015

    ·     In May 2014 there was also a report of a policeman who was kidnapped by a powerful spirit called a county devil and taken to a Poro bush school for initiation. The man was released but the perpetrators were not held accountable.[6]

    [6] The Inquirer, Internal Affairs advises Poro Sande Societies against illegal practices, forced initiation, 12 June 2014

22. [The] applicant’s representative, said that he has read widely about the Poro society. He said that the Poro society still registers Zoes even though in secret. He said that there is a difference between selecting a specific person nominated by a father, who was a Zoe, and other types of appointments. Reports suggest that it is the eldest son nominated. He referred to a report of a young boy in line to be Zoe who disappeared.  He said that if a person refuses to be a Zoe there is no evidence about what happens to them, and they are killed. The applicant is under their spell even in Australia. The government has suspended their activities, but this is not a total ban as the Poro schools are still in existence, as referred to in country sources provided by him. He said that Poro activities continue and the suspension is on paper only. The applicant cannot simply refuse to take up the position as there is coercion involved.

23. The representative submitted that the applicant’s wife, child and stepchildren should be taken into account. The applicant is the income earner and helps the children in many ways.

    Post-hearing submissions dated 6 September 2020

24. The applicant said that in the hearing he had inadvertently stated that the delegation to Australia came to celebrate independence. Instead they attended the Annual General Meeting of the Liberian Association of [State 1].

25. The applicant and his siblings were not initiated as the Poro Society does not compel members to initiate family members as joining the group is voluntary. While parents can be pressured to send their children to bush schools to be initiated, not every parent succumbs to the pressures. The applicant’s mother was sexually abused when she attended bush school as a young girl. She had a serious abdominal infection from female genital mutilation. Her Christian values were contrary to the Poro society’s values and for this reason the applicant and his siblings were not initiated. It would also have been costly to initiate them. It is not mentioned anywhere that children of a Zoe must be initiated. However there are numerous instances where the Poro has forcibly initiated people.

26. The applicant has contacted his family in Liberia and the Poro has not approached any of them in regard to replacing his father as Zoe. The applicant will continue to be the preferred son to replace his father because he was nominated to be heir.

27. The Poro Society is official and prominent people in the country including politicians are members. It is a secret society because its members swear on oath to keep information and activities of the group secret. Non-initiates are forbidden to discuss matters about the group in public, or they risk being killed. Every Zoe is registered by the Ministry for Internal Affairs and certificates are issued.

28. The applicant cannot return and tell the elders he is Christian as his father nominated him to be the next Zoe, therefore he is the only person the group is interested in. Refusing to serve is an affront punishable by death.

29. The applicant cannot relocate as Poro influence is everywhere.

30. The applicant does not have a valid passport to enter an ECOWAS country.

31. The representative claimed that at the Tribunal hearing, the applicant felt confused and panicked.

    Evidence of the applicant’s wife

32. The applicant’s wife in a Statutory Declaration to the Tribunal dated 26 August 2020, confirmed that they married on 13 February 2013. She confirmed that they applied for a Partner (Subclass 820) visa for her husband, which was refused.

33. She said that the applicant is the sole income earner in their family of five, so they do not have funds to reapply for a partner visa.

34. She said that the applicant applied for a protection visa in August 2015 because he is afraid to return to Liberia as he will be forcibly initiated to join the Poro secret society and become one of the leaders (Zoe) in Liberia to replace his dead father in the society.

35. She said that as an Australian citizen she did not want to lose her partner because he would be killed by the Poro society if he refuses to ‘go and take the position’.

36. She said that she had three children when she met the applicant, and he has been a wonderful father to them and that they have one child of their own called Jamesetta, born in 2013. She said that their lives have been transformed since she met him. The children enjoy going to school now as he attends school activities, helps them with their assignments, and the schools consult him on matters regarding the children.

37. She said that she had started working as a child educator at home to have some time for their young daughter and also earn some income to support the family.

38. She said that the applicant is currently studying at [a university] for a [degree] and working part-time. His departure from Australia would be ‘devastating not only to me but to the children and his future prospects both academic and employment wise.’

    Evidence of the applicant’s sister

1. The applicant provided a statement to the Tribunal from his sister which read as follows:

   Based on my current visit to our home village [just] a week ago, I was able to chart with oldman [deleted] of [Village 1] and he advised me to take note of what he was about to shared with me in confidence. During he and I conversation, he disclosed to me that you (Brother) are still been awaited for initiation into the bush secret society (Poro) to occupy our late Dad post; and with the prolong time for which you have stayed away which constitutes violation because you ran away without any consent and respect to your elders, he strongly said you should not make any mistake to foot on Liberian soil for the fact that punishment set aside for you are grave and thereafter you might not live longer after said process of initiation and he doesn't want you to die early like our late father especially a young educated man like you. Having sat down with [the old man] and listen to said narrative as well as what's happening today within our village and other parts of the country, that is: ‘ Forceful Recruitment and Initiation of people as well as Law Enforcement partitioners which are going ranpant as evidence by government publication through media institution like Daily Observer, Front-page Africa, etc.’ I am using this medium to kindly say to you that you should not come back home now until this matter is resolve. You are the only father we and our window mummy are relying on for achieving higher education and other supports. With love Brother.

   Evidence of the stepchild

2. The applicant’s stepchild made the following statement:

   I have known (the applicant) as a stepfather for over 8 years. He has been there for me when I needed him. He has fatherly advised me which has helped me become a better person and supported me and my interests, no matter what they may be. His advice is always in my mind because he wants me to become someone to take care of my siblings as I am the oldest. He is always smiling and does not resist to help us achieve anything. Being without a father at this time and age is worrying. I love him. After I graduated from school, he always encouraged me to further my education. I just finished a course [and] am getting ready for University education. He has become an important part of my life that I would rather not lose him as it would definitely take a toll on my mental health. His leaving Australia would mean that I will lose one of the people that have made me the person I am today. My younger sister would lose her father and the family I have become used to for over 8 years would be incomplete.

   DECISION OF THE DEPARTMENT

3. The delegate was not satisfied that the applicant was of interest to the Poro Society, and therefore found that he did not meet the refugee or complementary protection criteria.

   FINDINGS AND REASONS OF THE TRIBUNAL

   Relevant legal principles

4. The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.

5. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

6. The findings of the Tribunal, based on the evidence provided, are set out below.

   Applying the President’s Direction

7. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  The Tribunal also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

   ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[7] and

   [7] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

   ·that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[8]

   [8]At [8.1].

8. The first scheduled hearing was cancelled due to restrictions imposed due to the COVID-19 pandemic. The Tribunal then exercised its discretion to hold the hearing via Microsoft Teams video due to the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and that the hearing provided a real opportunity to be heard.

9. In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant and his representative and all parties were able to maintain line of sight and maintain appropriate communication throughout the proceedings.

   Nationality

10. The applicant has a Liberian passport issued [in] 2012 which expired in 2014. The applicant gave evidence that he is a citizen of and born in Liberia. The Tribunal is satisfied on the basis of the passport that the applicant is a citizen of Liberia and that Liberia is the receiving country for the purposes of the legislation.

    Section 438 Certificate

11. A preliminary issue for consideration concerns a certificate placed by the delegate, restricting disclosure of certain information in the Departmental file. This certificate was placed on the Department file pursuant to s.438(1)(b) of the Act stating that the Tribunal must not disclose the material in the relevant folios. The reason given for the restriction of folios 86 to 89 is because the information in the folios was given to the Department in confidence. The folios contain a confidential report from the Department providing information about risks presented by Liberian visa applicants.

12. There are two issues for the Tribunal; one is whether the certificate is a valid certificate and the other is the nature of the information in the purportedly restricted folios and whether the Tribunal should disclose it to the applicant on the basis of natural justice.

13. In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. For documents to have been given in confidence they must have the necessary quality of confidentiality. The report was prepared confidentially and labelled ‘immigration-in-confidence’. However the Certificate was not signed. In El Jejieh v MHA (No2) [2019] FCCA 840 the court held that an unsigned certificate is invalid. The Tribunal is satisfied therefore that the Certificate is not valid.

100.   The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate/notification to the applicant in the review. [9] In regard to the parallel provisions which apply in migration cases, in MIBP v Singh, the Federal Court found that where the obligations in ss 359A and 375A come into conflict, s 375A (the non-disclosure provision) is the leading provision but that the aims of both ss 375A and 359A can usually be served without conflict.[10] In Burton v MIMIA,[11] the Federal Court held that a valid s 375A certificate does not override the obligation to provide particulars of information under s 359A(1). His Honour stated that the provision of particulars under s 359A need not reveal the information subject to the s 375A certificate, and need not involve access to any actual document.[12] Therefore, while the material subject to a certificate cannot be provided to an applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its natural justice obligations.

[9] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 at [2], [29]–[30], [45].

[10] See MIBP v Singh [2016] FCAFC 183 at [56]. It was also held that Davis v MIMIA [2004] FCA 686 was not correct to the extent it suggested that if there is a s 375A certificate, it has the effect that s 359A never gives rise to an obligation to provide particulars, or that there is no obligation to disclose the existence of the certificate to an applicant. An application for special leave to the High Court was dismissed: MIBP v Singh [2017] HCATrans 107.

[11] Burton v MIMIA (2005) 149 FCR 20 at [40]–[42]. His Honour noted that if Parliament had intended to make the obligation in s 359A(1) subject to s 375A one would have expected it to have done so but that it had not. Justice Wilcox’s reasoning is difficult to apply in circumstances where it is not possible to provide particulars of s 359A information without disclosing information that is subject to a valid s 375A certificate.

[12] In Burton v MIMIA (2005) 149 FCR 20 the Court held that the earlier judgment in Davis v MIMIA [2004] FCA 686 on this issue was wrongly decided and declined to follow it. As Burton was a decision of a single Federal Court judge sitting in the Federal Court’s appellate jurisdiction it has greater precedential value than Davis, a decision of a single Federal Court judge at first instance and accordingly should be followed.

101.   After considering the advice from the Department, and the judgments referred to above, the Tribunal disclosed the existence of the certificate to the applicant and the gist of the information in the report, without disclosing the names of other parties or showing the applicant the actual document. In deciding to disclose the information the Tribunal took into account the fact that the Department had already revealed some of the information to the applicant at the Departmental interview. The applicant was provided with an opportunity to comment or respond. This is discussed in more detail later in the decision.

Findings of fact

The reasonable approach to fact-finding

102.   When assessing claims the Tribunal must make findings of fact in relation to the claims. This may involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth[13], and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[14]  In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

[13] Fox v Percy (2003) 214 CLR 118.

[14] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

103.   This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

104.   The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

105.   The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal's Guidelines on the Assessment of Credibility, both in the conduct of the hearing and in evaluating the applicant's evidence as a whole.

Findings of fact

106.   The Tribunal is satisfied that the applicant was involved in the Congress for Democratic Change and worked as [an Occupation 1]. Information about his position was provided as part of his application to travel to Australia with the political delegation, and a letter from the National Secretary-General of his branch corroborated this claim.

107.   The Tribunal is satisfied on the basis of the applicant’s evidence and the death certificate provided that the applicant’s father passed away in July 2015.

108.   The Tribunal notes that the evidence of the applicant’s wife and stepchild suggests that he is a hardworking person who is currently studying for a [degree] and is a Christian. He is clearly a kind and devoted father to his own child and stepchildren. However, the Tribunal is not satisfied that his central claims are credible and can only speculate that some kind of desperation or influence of others led to the formulation of the claims, as otherwise he appears to be a person of good character. For the reasons set out below, the Tribunal is not satisfied that the applicant was asked to be a Zoe by the Poro Society elders in his village who have threatened to kill him if he does not comply.

109.   Firstly, the circumstances of the applicant’s arrival and continued stay in Australia indicate that he arrived in Australia with an intention to remain, rather than to visit the Liberian community temporarily with a parliamentary delegation as claimed. These circumstances and the timing of his protection visa application after the refusal of his partner visa application, suggest that his application for a protection visa is a last resort after other attempts at obtaining visas have not been successful, rather than being founded in genuine fear of returning. This is explained in more detail below.

110.   The information in the applicant’s application for a Temporary Business Entry Visa indicates that he was part of a parliamentary delegation, which included his employer, [Mr A], a member of the House of Representatives. In] October 2012 the Department office in Pretoria, received a Third Person Note (TPN) from the Liberian Ministry of Foreign Affairs requesting that visas be granted to a delegation of 16 members of the House of Representatives and Senate of the Republic of Liberia. The TPN stated that the group had been invited by the Association of Liberian Community of Australia[to] attend an Annual General Meeting of the Association scheduled between [October] to [November] 2012. Also received was a copy of a letter of invitation sent to [Mr A] from [a named official of the Liberian organisation] inviting the group to an Annual General Meeting. [Mr A] was invited as a keynote speaker, and the rest of the group as facilitators to provide information on the current challenges and opportunities in Liberia. It was stated that the group's knowledge of Liberia would provide information on how the organisation could best contribute to the development and rebuilding of war-tom Liberia. Visas were granted to the group.

111.   Departmental records indicate that on 12 December 2012 an Integrity Alert Notice was issued within the Department indicating that 12 members of the delegation stayed on in Australia and applied for other visas, mainly partner visas. This does suggest that the delegation had been some kind of a mechanism to allow them to travel to Australia and remain in the country, including the applicant. Departmental officers commented on the ongoing problem of corruption and fraud in Liberia, and the fact that Liberian nationals may submit tourist or business visa applications and then seek to remain in Australia through lodging protection or partner visa applications. A complaint was received by the Department in December 2012 from a member of the Liberian community in Australia that members of the delegation were seeking to remain onshore by lodging Family Migration applications having entered into marriages with Liberian community members in Australia and possibly travel interstate under the pretence of visiting relatives/friends. He also stated that the Liberian Community in [State 1] had ceased to have any further dealings with [Mr A] and his entourage. A related allegation was received by telephone to the Department on 20 December 2012 from a person claiming to be a Liberian Community member alleging that [Mr A] receives money for smuggling people from Liberia using fake Diplomatic and Official passports, and that [Mr A] facilitates marriages from within the Liberian community in Australia. The Department commented that this was a well-organised people smuggling operation.

112.   This information (which was content referred to in the s.438 Certificate mentioned earlier) was put to the applicant by the Department, and by the Tribunal under the natural justice provisions of the legislation[15] at the Tribunal hearing. Asked to respond or comment he said that it was not true that the visit of the delegation was a means to stay in Australia, and his passport was not fake. He said that he only ‘knows his own situation’ and in regard to the other members of the delegation he did not know ‘anything about this’ and he had a genuine relationship. He said that he did not have an intention to stay permanently in Australia when he came with the delegation. He said that he and his wife have stayed together, and he does not know much about the others.

[15] Section 424AA of the Act.

113.   The Tribunal notes that the applicant arrived in Australia in November 2012, met his wife and married in February 2013, so in a very short period of time. Without any knowledge of the status of his relationship at the time it began, the Tribunal makes no comment on whether the applicant entered into a false or genuine relationship at that time. The Tribunal accepts on the basis of his evidence, and the evidence of his wife and stepchild that he is now in a genuine relationship with his wife. They have a child together and have been together since 2012. His wife has given evidence of his commitment to their family of five and his stepchild has testified to him being her stepfather for 8 years and helping and guiding her with school work and other fatherly duties. The Tribunal accepts that they are a genuine and loving family.

114.   However, the Tribunal is of the view that the delegation travelled to Australia with an intention to remain in Australia, given the Department information that nearly all members of the delegation did so remain. This does suggest that the applicant had an intention to remain in Australia since 2012 and does significantly undermine the suggestion that he only applied for a protection visa because he found out in 2015 that he was required to be a Zoe.

115.   Secondly, the applicant’s evidence about Zoes and Poro was very vague which is unusual given that his grandfather and father were Zoes, and he is an educated person who would know that he was next in line for the position. The applicant told the Tribunal he first heard about Poro when he was about [age] and his father was taken for initiation and was away for a year in the bush. His mother told him what a Zoe was and that it was passed down the family. He said that he knew that his grandfather was a Zoe although he did not know in detail what it was. According to his representative, the applicant vaguely remembers his father being taken away for Poro burial rituals of his grandfather.

116.   However, the applicant said that he had no knowledge of his father’s role and was not interested in finding out. He has not taken any interest in finding out about the role of Zoes despite knowing that his father was a Zoe and he would be a successor as the eldest son. Information is readily available online about Zoes. For example, Fulton has provided detailed information on the sacred functions of the Zoe.[16] She has provided information on the functions of organising relationships with spirits, in five categories – ancestral spirits, genii, bush and water spirits, spirits of the associations and Poro spirits including the bush devil, an earthly manifestation and controlling spirits through ceremony, medicine and exclusive contact for good or ill. She has discussed how Zoes control several masked figures that represent spirits, and also have secular functions including internal police, judiciary, diplomacy and advising secular authorities.[17] Other sources discuss how the Poro society has always been integral to Kpelle and Liberian society. Poro bush schools are for Poro initiates, and they are instructed in local history, genealogy, herbalism and rituals.[18] A 1997 book ‘Anthropology: What does it mean to be human?’ provides information on the Poro as follows:

Poro is a secret society for men ... Poro is responsible for initiating young men into social manhood ... members have certain knowledge that can be revealed only to initiated members … Poro is responsible for supervising and regulating the sexual, social and political conduct of all members in the wider society. To carry out this responsibility, high-status sodality members impersonate important supernatural figures by donning masks and performing in public ... Membership is automatic on initiation ... each community has its own Poro congregation.[19]

[16] Fulton, R, The political structures and functions of Poro in Kpelle Society’, American Anthropologist, October 1972, Vol 74, no 5.

[17] Fulton, R, The political structures and functions of Poro in Kpelle Society’, American Anthropologist, October 1972, Vol 74, no 5.

[18] Everyculture.com, Countries and their Cultures – Liberia, 26 March 2015.

[19] Lavenda, RH and Schultz, EA, Secret societies in Western Africa,2007, Oxford University Press Website.

117.   The applicant appeared to have little knowledge of the Poro and not to be interested in finding out. In written submissions to the Tribunal the applicant responded to concerns of the delegate as to how he could be appointed without any knowledge of the Poro:

The applicant understands the argument of the Delegate; however, he has no control of what the group does, why and how they perform these initiations and rituals. Nonetheless, there is evidence to collaborate the fact that persons with no knowledge and never been involved previously are initiated to become a Zoe. A case in point is narrated in Item 106 page 2, in which a young boy [was] captured to replace his dead father who was one of the leaders in the Poro society. The case happened in 2014, and at the time of reporting the story in 2018, the boy has not been seen. The friend who reported the story said ‘I don’t know whether he is dead or alive but even if he is alive, considering the position of his father in the ‘Poro’ society, if he resurfaces, he will be killed.I miss him; I still have memories of our childhood together.’ The fact that the [young boy] was captured is a sign that he was not a member of the group, he had no knowledge and had never been involved previously. Sadly, ‘if he resurfaces, he will be killed’ is an indication that refusing to take the position is punishable by death no matter the time that had lapsed. In the last paragraph of Item 106, [A] lecturer of African history at [a] College, said the practice of forceful initiation of young boys into the secret Poro society started since the society was founded. He said the secret society still remains very powerful in Sierra Leone. It is believed that they have mystical powers and they can harm anyone with those powers. It is still considered a taboo to even call the name ‘Poro’ in Sierra Leone, talk less of discussing their practice. There have been many reported cases of human sacrifices by members of the secret society but nothing comes out of it. Among other things, according to (the applicant’s) uncle, his father was initiated into the Poro society and made a Zoe in [year] despite the fact that his father was not a member and had never been involved previously in the group. The above accounts demonstrate that regardless of one's knowledge and previous participation in the group, one can be initiated and become a Zoe. This supports the applicant’s claim that he can forcibly be initiated into the group to become a Zoe to replace his father regardless.

118.   The applicant also said that after the war, his parents returned to [Village 1] and he went to [Town 2] and this was the last time he lived with his parents, which explains why he had little knowledge of the society despite his father’s role. The Tribunal acknowledges that he had little contact with his father, the Poro society operates in secrecy, and that people who are not interested in being Zoes may be approached as in the example provided by the applicant. However the applicant has given evidence that he knew that his father was a Zoe, however he never asked questions about what this meant for him or discussed it with his father or others, which would have been possible even with limited contact. Furthermore, the applicant is studying law which means that he would be familiar with internet research. It appears highly unlikely that a person who was next in line to be a Zoe would not have researched some of the information about the roles and responsibilities and questioned his relatives about this.

119.   Thirdly, the Tribunal is not persuaded that the applicant decided to apply for protection because of receiving an email from [Mr B] about being called up to be Zoe. The applicant no longer has the email chain with [Mr B] so that it could not be independently verified and the Tribunal has doubts as to its authenticity. There is also no corroborative evidence that he had made plans to return to Liberia at the time. Not only has the applicant not kept the email chain, and has no documentary evidence of plans made to return to Liberia, but the email was purportedly received within weeks of the refusal of his partner visa, providing a basis for him to apply for protection. Furthermore, the email does appear to contain extraneous detail; for example, when discussing the applicant’s father [Mr B] states, ‘who ruled the people of [Village 1] for decades’. When asked about why [Mr B] would tell the applicant something he would already know, the applicant said that [Mr B] wanted to pass on ‘new ideas’. The representative submitted that the applicant did not know much about Poro so the email was informative. It does appear unusual that this detail would be included in an email from a friend who would know that the applicant was fully aware of his own father’s position. This, and other details about the general practices of the Poro, widely known, does suggest that the email was prepared for the purposes of the protection claim rather than as a communication between friends.

120.   Furthermore, purportedly within one day of receiving the email the applicant had completed his protection visa application, which would have been difficult to achieve. Asked about this at the Tribunal hearing, he said that he read [Mr B]’s email in the afternoon. He said that he became very confused. He knew about protection visas as he is educated. So he decided to apply for a protection visa and he contacted his sister. He asked her if she had heard anything about initiation. His sister said she would speak to his mother, but she did not have a telephone. She called [Mr D] and then called him back. He felt that he should apply for a protection visa. He printed the application off the internet at the public library. He filled it in himself. The next day, the Friday, he was able to get hold of his Birth Certificate, Marriage Certificate, Australian Citizenship Certificate and passport. He copied the documents and had them certified, printed them and then took the documents into the city. He also prepared a written statement. In written submissions to the Tribunal he said that the application forms for the Protection visa were not difficult to fill in. He said it took him about two hours to complete the forms. He said he ‘acted quickly’.

121.   While possible to complete a protection visa application so quickly, it is somewhat unlikely that he would have been able to do so given that he has submitted that he did not have a fear of returning prior to the reception of the email, and a number of supporting documents are required.

122.   In reaching a conclusion that the email from [Mr B] was formulated for the purposes of a protection visa application, the Tribunal reached the view that it was highly unlikely that the applicant would not have been told [in] July 2015 when he was informed of his father’s death that he was required to be Zoe. It would be expected that he or his family members would have been informed by his father prior to his death, and that if his mother or sister had been informed they would have told him. Instead the applicant said that he was informed that there were plans for him to be initiated to the Poro Society position [in] August 2015. He said that he told his sister about [Mr B]’s email and she asked her mother who ‘probably had only found out from [Mr B]. This aspect of the narrative does appear unlikely. If their father had nominated the applicant it would be expected that he would have told the applicant or the family prior to his death, particularly, as, according to the applicant, he had respected his wife’s wishes not to involve the family with Poro. If for some reason he did not tell the applicant or family, it would have been expected that the applicant or his family members would have been informed by the elders upon his death.

123.   Fourthly, although the applicant was in line to be Zoe, he was not initiated as a child nor had there been attempts made to initiate him, which appears to be unlikely if he came from a family where he was next in line to be Zoe. Generally, school age children or young men are initiated.[20]

[20] New Dawn, Clan Chief suspended for Poro activities,29 April 2015, Frontpage Africa, 17 year old schoolboy forced into Poro society, 29 April 2015.

124.   In written submissions to the Tribunal about this matter the representative said that:

The applicant accepts that the Poro society typically initiates school-aged children and young men. This means that initiation into the society is not exclusive to school-aged children and young men, and in some cases, adults are initiated. The phrase ‘rather than adults’ in the above statement is counter-intuitive because of the use of the word typically, which literally means ‘in most cases’. There is evidence to show that adults are also initiated into the society. In a report (Item 107 attached) which was authored by Stephen Ellis (Afrika-Studiecentrum) and entitled ‘Young Soldiers And the Significance of Initiation: Some Notes From Liberia’, page 7, paragraph 2, states that ‘successive presidents of Liberia have had themselves proclaimed leaders of the Poro male initiation society. William Tolbert, president of Liberia from 1971 to 1980, was both supreme Zo of the Poro society and president of the World Baptist Alliance. The current head of state, Charles Taylor, has taken the title of Dakpanah, or supreme head of all Zoes. According to a Nigerian intelligence report, he has required all his cabinet members to be initiated’. The applicant’s claim that he would be initiated into the society is credible because the Poro society initiates adults into the society, the cabinet members stated above are adults.

125.   The Tribunal accepts that sometimes adults may be initiated but in his case it would be expected that he would have been initiated if he was the son of a Zoe, but he could not recall any discussion about this taking place. He has also said that his siblings were not initiated. The applicant has explained this by stating that the Poro Society does not compel members to initiate family members and joining the group is voluntary. He said that his mother was sexually harassed during her bush school and suffered abdominal infection due to female genital mutilation. She was opposed to initiation and for this reason the children were not initiated. This is a reasonable explanation, however it does not accord with his submissions that he would be forced to be a Zoe and initiated if he returned. Furthermore there is ample evidence about forced initiations[21], which although illegal, do take place from time to time.

[21] Liberian Observer, Christian Man ‘Kidnapped, Forcefully Initiated’ into Poro Society, 14 August 2018.

126.   Fifthly, according to country sources, while the position of Zoe is hereditary, it is not only the first son chosen but other family members who can be chosen.[22] People can be also be appointed as Zoes through skill, completion of appointed tasks, heredity and wealth, as well as being groomed beforehand.[23] One article suggests that to be a Zoe, a child must learn about traditional medicines from his father the Zoe.[24] He was asked about this at the Tribunal hearing and responded that he was required to be Zoe because his father had selected him before he passed away. He said that none of his siblings had been approached and he was still required to take up the position. The Tribunal is cognisant of the fact that Poro practices are secret and may vary by locality, however on the basis of these sources it does appear that there are instances where other people besides the first son can be chosen and in his case he has been away for a long time such that it may well be the situation that others would be selected in his absence.

[22] Everyday culture.com, Countries and their cultures - Liberia, 26 March 2015

[23] American Anthropologist, The Political Structures and Functions of Poro in Kpelle Society, 28 October 2009.

[24] Bellman, B.L., The Language of Secrecy, Symbols and Metaphors in Poro Ritual, Rutgers University Press, New Brunswick.

127.   For all these reasons, considered cumulatively, the Tribunal is not satisfied that the applicant was asked to be Zoe or threatened with death if he did not comply. As the Tribunal does not accept the evidence that the applicant has been asked to be Zoe and threatened if he refuses to take up the position, the Tribunal has given little weight to the email of his sister in which she claims that it would be dangerous for him to return or the document from the National Council of Chief and Elders or the Ministry for Internal Affairs.

128.   The Tribunal, in making the findings of fact above, has carefully considered the principles in  Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton.[25] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may for example be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway referring to decisions of the Immigration Appeal Board in Canada, has stated:

Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  ‘Lies do not prove the converse.’ Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.’[26]

[25] (1996) 40 ALD 445.

[26] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

129.   A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

130.   The Tribunal has considered for example whether the email from [Mr B] and from his sister have been provided to inflate the applicant’s claim which is nonetheless credible. However the Tribunal is not satisfied, considering all the factors referred to above cumulatively, that the applicant has been asked to be Zoe, or that the elders have threatened him with death if he does not accept the position. Courts have often reiterated that the Tribunal must consider the evidence in its entirety and not in isolated parts, see for example, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997), and it is the totality of the evidence which has led to this conclusion. Indeed in Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[27]

[27] [1997] FCA 1198 at (11).

131.   The Tribunal has noted the reports about the delegation with which the applicant travelled and the fact that nearly all members of the delegation remained in the country after their visit. This does suggest that he had the intention of remaining in Australia when he first came to Australia and that the protection visa application was a means for achieving this outcome, rather than arising out of genuine fear, particularly when considering he applied for protection so soon after the refusal of his partner visa. Furthermore, the fact that he applied so quickly after receiving [Mr B]’s email does suggest that the email was formulated as an aspect of a narrative to support a claim for protection, rather than being a genuine email, particularly when considering the content of the email. Furthermore, the fact that the applicant was not initiated and has had little knowledge or interest in Zoes and the Poro does suggest that he was not in line for Zoe as claimed. While some of these factors on their own may be explainable, when considering these matters cumulatively the Tribunal is not satisfied that the applicant is in line for Zoe, or that the elders have threatened to harm him if he does not take up such a position.

Does the applicant have a well-founded fear of persecution?

132.   Under s.5H(1) of the Act, a person is a refugee if owing to a well-founded fear of persecution a person is unable or unwilling to avail themself of the protection of their country of nationality.

133.   The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

134.   The concept of 'well-founded fear of persecution' is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

·     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

·     the real chance of persecution relates to all areas of a receiving country.

135.   For a person's fear of persecution to be well-founded, there must be 'a real chance that, if the person returned to the receiving country, the person would be persecuted…'. Consistent with the interpretation of 'well-founded fear' under the Convention, this 'real chance' requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

136.   The concept of 'real chance', as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

Is there a real chance of serious harm for reasons of the applicant’s religion, or for imputed political opinion because of refusal to become a Zoe?

137.   The applicant has submitted that he will be killed or otherwise seriously harmed for refusing to become a Zoe on the basis of his religion. He referred to an article captioned ‘Poro Society Members on Rampage’, which reports that the eldest son of any senior member of the Poro society is expected to succeed his dead father by force. It was submitted that this supports the applicant’s claim that the eldest son of the dead Zoe succeeds his father and the punishment for refusing to take up the position is death. An article was provided which reports on the disappearance of a young boy who was captured to replace his dead father, who was a senior member of the Poro society. According to the article the captured boy has not been seen since his capture in 2014, so it is unclear if he is dead or alive.

138.   The Tribunal is not satisfied that the applicant has been asked to be a Zoe by the elders or that they have threatened to kill him if he refuses to do so. The reasons for this finding are set out above. The Tribunal is not satisfied therefore that there is a real chance of serious harm from the Poro elders if he returned to Liberia in the reasonably foreseeable future.

139.   In any event, while there are a number of reports of forcible initiation[28], the Tribunal did not locate recent reports regarding adverse treatment of people who refuse to become Zoes in the Poro society or because they are Christians,[29] other than the report provided by the applicant. There is no doubt that the Poro society has an integral role in the Kpelle community, with one commentator suggesting that it is not hard to comprehend the power of the Poro when ‘we realise the functions that it performs, educationally, religiously, medically and politically’.[30] The United Nations Mission in Liberia describes the Poro and Sande societies as the trusted custodians of culture. They are traditionally believed to inculcate values and teach skills conducive to communal harmony. They also have a spiritual dimension although are not considered to be religious as such.[31] However it is important to note that most Sande and Poro members are also adherents of Christianity or Islam.[32] The major human rights reports do not include information about targeting of people who refuse to become Zoes.[33] Reports suggest also that the government has introduced several initiatives to control the activities of traditional societies in Liberia including initiation rituals, aimed at the Poro society.[34] While there are still some reports of forcible initiation[35], General Circular No 12 was issued by the government and it outlawed forced initiation. The circular stated that people who used any form of force or intimidation to compel another person to yield to or be initiated into any tribal ritual or traditional practice could be arrested, charged and prosecuted.[36] While there have  nonetheless been continued reports of forced initiation with inadequate responses from law enforcement authorities despite the circulars,[37] as commented on by the applicant, there are criminal penalties for assault, kidnapping, felonious restraint and homicide,[38] with some evidence of enforcement.[39]

[28] US Department of State, 'Liberia 2018 International Religious Freedom Report', 21 June 2019, p.5; Daily Observer, Christian Man ‘Kidnapped, Forcefully Initiated into Poro Society’,14 August 2018, United Nations, United Nations Mission in Liberia, An assessment of human rights issues emanating from traditional practices in Liberia, December 2015, p.18

[29] Searches were conducted of CISNET, international COI sources, medical journals, Liberian news websites and general internet searches.

[30] Fulton, R, The political structures and functions of Poro in Kpelle Society’, American Anthropologist, October 1972, Vol 74, no 5

[31] Fulton, R, The political structures and functions of Poro in Kpelle Society’, American Anthropologist, October 1972, Vol 74, no 5

[32] United Nations, United Nations Mission in Liberia, An assessment of human rights issues emanating from traditional practices in Liberia, December 2015

[33] See for example United States Department of State, Country Reports on Human Rights Practices Liberia, 2019, 11 March 2020

[34] Front Page Africa, Liberia suspends Poro and Sande practice in wake of Ebola, 5 September 2014

[35] Liberian Observer, Christian Man ‘Kidnapped, Forcefully Initiated’ into Poro Society, 14 August 2018

[36] Committee on the Elimination of Discrimination against Women, Consideration of reports submitted by State parties under Article 18 of the Convention, 10 April 2014, UNHCR Refworld, page 14

[37] UN Security Council, Twenty-ninth progress report of the Secretary-General on the United Nation Mission in Liberia, 23 April 2015, The Advocates for Human Rights,  Liberia Stakeholder Report for the United Nations Universal Periodic Review, 3 October 2019

[38] UN Security Council, Twenty-ninth progress report of the Secretary-General on the United Nation Mission in Liberia, 23 April 2015

[39] See for example Abban, J, Liberia: Chief Zoe arrested, The New Dawn, 16 April 2015

140.   Importantly, according to various news reports, traditional leaders have temporarily banned all Poro societies until otherwise ordered.[40]  In 2014, the United Nations Mission in Liberia reported that two incidents in regard to harmful traditional practices drew national attention, one involving the gang rape of a woman and the other the forced initiation of a police officer.[41] These incidents were condemned by the government but the perpetrators not held accountable. Since then, dialogues were held between the chiefs and elders and they agreed to ban the societies because of reports of conscriptions and infringements on the rights of non-members. In June 2019, the National Council of Chiefs and Elders and the Ministry of Internal Affairs (with support from United Nations (UN) Women and the European Union’s Spotlight Initiative) announced a one year suspension on all Poro and Sande activities, including their ‘bush schools’.[42]

[40] AllAfrica, United Nations, United Nations Mission in Liberia, An assessment of human rights issues emanating from traditional practices in Liberia, December 2015

[42] United States Department of State, Country Reports on Human Rights Practices Liberia, 2019, 11 March 2020, p.22, 20200312131058; Front Page Africa,  Liberia: Women’s Day Speaker Calls on President Weah for More Women In Government’ 9 March 2020; Daily Observer (Liberia),  Liberia: Traditional Chiefs, Elders Ban Poro, Sande Activities', 27 June 2019; Daily Observer,  ‘Group Wants NGOs Punished for Interfering in Sande, Poro Matters’, 12 December 2019

141.   Notwithstanding transgressions, the ban is in place and the authorities are making an effort to enforce them. For example in 2019, ten female Zoes of the Sande society were arrested in Nimba county, Liberia for breaching the suspension on Sande activities. According to Front Page Africa, they were arrested after they were allegedly caught forcing school-age girls to attend bush schools.

142.   As part of the suspension, the government has launched the EU sponsored ‘Spotlight Initiative’ to provide alternative economic activities for the leaders of the Poro and Sande societies. The program is being implemented in five of Liberia’s 15 counties, including Montserrado, Lofa, Grand Gedeh, Grand Cape Mount and Nimba.[43] Traditionally, leaders of these groups rely on performing initiation and other ceremonies for their main source of income. Under the program, four Poro and Sande ‘bush schools’ will be transformed into vocational and heritage centres to build alternative skills for their traditional practitioners. According to Front Page Africa, 300 ‘traditional practitioners are expected to obtain alternative economic activities and skills building’.[44]

[43]  Front Page Africa, Government, Partners Break Ground for Vocational & Heritage Centers as Alternatives for Traditional Schools’, 20 December 2019

[44] Front Page Africa, Government, Partners Break Ground for Vocational & Heritage Centers as Alternatives for Traditional Schools’, 20 December 2019

143.    Furthermore, Lofa and Nimba counties have implemented their own ban on Poro and Sande activities in response to the COVID-19 pandemic[45] until the pandemic is over[46], although there are some reports that Poro and Sande societies continue to operate in some localities despite these suspensions.[47]

[45] Local Voices Liberia, COVID-19 Lofa County Traditional Leaders Indefinitely Suspend Sande, Poro Societies, 9 April 2020; Liberia Public Radio, Nimba’s Secret Society leaders given 20 days to shutdown bush-schools, 28 April 2020

[46] Local Voices Liberia, COVID-19 Lofa County Traditional Leaders Indefinitely Suspend Sande, Poro Societies, 9 April 2020

[47]  Daily Observer (Liberia), Liberia: Traditional Chiefs, Elders Ban Poro, Sande Activities 27 June 2019; Front Page Africa, Liberia: Several Sande Zoes Arrested in Nimba for Defying Traditional Council, 3 December 2019

144.   Finally, the fact that there has been no harassment of the applicant’s family members does suggest that he would not be harmed if he returned. The applicant has claimed that they would harm him only as it is his refusal to take up the position of Zoe that would cause hostility. Nonetheless the fact that he has a large family in Liberia, including his mother, seven siblings and extended family who are all living and working safely without harassment does provide some indication that the Poro elders are not adversely interested in him.

145.   The Tribunal has considered all these factors cumulatively. Although the Poro still operates it is more constrained by the bans and some government enforcement, and there is little evidence of harm being committed against people who refuse to be Zoes. The applicant’s family has not been harassed although he has refused to take up the position. Thus, even if the Tribunal is wrong, and the applicant had been asked to take up the position, the Tribunal is not satisfied, considering all these factors cumulatively, that there is a real chance, in the sense of a non-remote and substantial chance[48] of serious harm were the applicant to return to Liberia in the reasonably foreseeable future.

[48] Chan v MIEA (1989) 169 CLR 379

Is there a real chance of serious harm for any other reason?

146.   The applicant studied at [University 1] from 2002 to 2010 and claimed that he participated in the 2005 and 2011 elections for the opposition party. He was involved in campaigns and rallies. He said that he was harassed by the government, but it was ‘not life threatening’. In his evidence to the Tribunal he did not suggest that he currently fears harm for reasons of his political opinion, or that he would be politically active if he returned. The party he supported, the Congress for Democratic Change, is now part of the Liberian ruling Coalition for Democratic Change (CDC) formed in 2017 to contest the 2017 election.[49] Liberia is a constitutional republic with a democratic government.[50] There is no indication therefore that he would be targeted by the government authorities or opposition parties.

[49] Political Handbook of the World 2018-2019, ed Lansford, T

[50] United States Department of State, Country Report on Human Rights Practices Liberia 2019, 2020,   The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his political opinion. No other reason has been identified by the applicant.

Findings on well-founded fear of persecution

148.   The Tribunal is not satisfied for the reasons set out above that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

Does the applicant meet the complementary protection criteria?

149.   If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

150.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

151.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

152.   The Tribunal has not accepted that the applicant was asked to be Zoe or that the elders have threatened to kill him if he refuses to take up the position. The reasons for this are set out in detail earlier in this decision. The Tribunal has also found that the applicant does not face a real chance of serious harm from Poro elders or from any other person, group or authority in Liberia. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation were the applicant to be removed from Australia to Liberia.

153.   The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Liberia there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

154.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

155.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

156.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).

DECISION

157.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Natural Justice

• Jurisdiction

• Standing

• Statutory Construction